Opinion
October 21, 1985
Appeal from the Supreme Court, Westchester County (Isseks, J.).
Order reversed, with costs, and motion denied.
Plaintiff was not entitled to summary judgment. Her papers read in support of the motion failed to include a copy of the pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338, 341). Moreover, notwithstanding the fact that defendants were precluded by prior court order from offering testimony at trial, the text of plaintiff's own deposition, submitted in support of her motion, arguably raises an issue of fact as to liability and comparative negligence. It is long settled that the drastic remedy of summary judgment should not be granted where there is even arguably a genuine issue of fact (see, Capelin Assoc. v Globe Mfg. Corp., supra, at p 341; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Pontello v County of Onondaga, 94 A.D.2d 427, 432). We note parenthetically that were we not reversing, we would still have to modify and remit for an inquest of damages as nisi prius order failed to provide for the same. Mollen, P.J., Thompson, Bracken and O'Connor, JJ., concur.